1. This appeal and the reference arise out of Sessions Case No. 17 of 1959 on the file of the Addl. Sessions Judge, Dharwar, in which the appellant Basappa Bhimappa Dodmani having been tried on a charge of having committed the murder of one Fakirappa Kariyappa Dodmani by stubbing him with a knife at about 5 p.m. on the 3rd of August, 1958, was found guilty of the offence and was sentenced to death by the Sessions Judge subject to confirmation by this Court. The reference is for the confirmation of the sentence and in the appeal by the accused the contention is that he should have been acquitted.
2. The case for the prosecution is a very simple one. According to them, when deceased Fakirappa was sitting on the katta of his house, the accused-appellant came to the place burling abuses at him; when Fakirappa got down from the katta and asked the accused to keep quiet, the accused clashed agaiast Fakirappa and when Fakirappa further asked him whether he proposed to beat him, he said that he had come for the very purpose and immediately plunged a knife into the left side of Fakirappa's abdomen. Fakirappa did not die immediately. An attempt was made to take him to the hospital at Hubli, 14 miles away from the place of occurrence, and an ambulance van from the hospital was brought down to Arlikatte about a mile from the place; because the road between the village Inamkop and Arlikatte was not a motorable one, Fakirappa was carried to Arlikatte but he succumbed to his injury before he could be put into the van.
3. The appellant Basappa and the deceased Fakirappa are distant Bahubands and are both, residents of Inamkop village in Kundgol taluk of Dharwar district. On the day of occurrence, i.e., Sunday the 3rd of August 1958, Fakirappa who had been to Hubli for some purpose, had just returned about 2 hours before sunset. Immediately on his return he took his evening meal and was sitting on the katta of his house. His wife Mariyavva P. W. 1 sat on the threshold doing some household work.
Next to her was her daughter Ningawa P. W. 2 feeding her infant babe; her husband Basappa Kudri and a 10 year old daughter Gowrawa were also present Mariawa's brother's son llamappa P. W. 4 who was living and working with her was at that time collecting fodder in the backyard of the house. P. W. 6 Bhimappa Bharmappa Naik is the occupant of the house opposite to that of Fakirappa. He was at that time, according to his evidence, eating his evening meal inside his house. P. W. 5 Giriyappa Mallappa Kodliwad had gone to the shop of P. W. 7 Nagawa Rachappa Medarshetti for purchasing some betel leaves. That at shop is 34 paces away from the house of Fakirappa.
4. P.Ws. 1 and 2 depose that when their father and themselves were so seated in front of the house the appellant Basappa came from his house, which is not far away, towards their house and started abusing Fakirappa. Thereupon Fakirappa. left the kattn of his house, went a few paces ahead and asked the accused why he was so abusing. The accused came forward and dashed against Fakirappa. Fakirappa then asked him why he was conducting himself in that fashion and whether it was his intention to beat him. At this, the appellant is said to have answered 'yes, I have come to brat you' and plunged a knife into the left side of Fakirappa's abdomen. To the same effect is the evidence of P. W. 6 Bhimappa and P. W. 5 Giriyappa who ran to the place upon hearing the voices of abuse.
Both of them had come to the place in time to witness both the dashing as well as the stabbing. Both of them say that they were attracted to the place by cries or voices of abuses. Immediately after the stabbing, Giriyappa caught hold of the accused exclaiming 'what is this you have done'; he led him away from the place to his (appellant's) own house. AH the witnesses have seen the appellant carrying the blood-stained knife with him. Ramappa, P. W. 4 and Nagavva P. W. 7 arrived only about the time Ciriyappa had caught hold of the appellant. They have, therefore, not witnessed the actual stabbing.
5. Narayan Patil, the police patil of the village, P. W. 9 received information from his wali-kar Nagappa. According to him, it was about 6-30 p.m., when he received this information. He immediately proceeded to the place of occurrence, received confirmation of the information from those present and wrote out a report of the incident to be sent to the police at Kundgol. Evidence discloses that the police patil continued there at the place for sometime more.
6. Giriyappa, P. W. 5, who took the accused to his house, passed on the information to the accused's brother Bharmappa. It is this Unarm-ape who proceeded immediately to Hubli to fetch the ambulance van to can the injured to the hospital for treatment. P. W. 3 Amirsab is the driver of that van. According to him, it was Bharmappa in the company of two others that had come to the hospital for the van. It was about 8-30 p.m. when they reached the hospital and asked for the van.
Within about half an hour, the van reached Arlikatte: it could not proceed further because, as already stated above, the road beyond was not a motorable one. Amirsab deposes that the people who had come for the van proceeded on foot to Inamkop and brought the injured in a cradle. He bad to wait for about half an hour at the spot tor the party to return. By the time Fakirappa could be put into the van, he had expired. Therefore the van went back to Hubli and the party took Fakirappa's body back to his house.
7. Nagappa Walikar to whom the police patil had given his first information, did not go alone but in the company of P. W. 4 Bamappa and the latter's two uncles Hanmappa and Erappa. The investigating Police Officer Gurubasaya Sali P. W. 14 deposes that ho received this report at, Kundgol at 2-35 a.m., after the midnight of the third of August, 1958. He reached the place of occurrence about 6 a.m., and finding that Fakirappa was already dead, received a further report from the police patil mentioning the fact of death.
8. The prosecution relies principally on the evidence of the four eye-witnesses, Mariyavva, Ningavva, Giriyappa and Bhimappa. They also rely upon the accused having produced a knife concealed in the manger of his cattle shed some time between 11 and 12 O'clock on the 4th of August, 1958. A motive is also suggested and that is, the existence of certain disputes in respect of a vacant site referred to as 'hittal' or 'backyard' in the evidence.
One Channappa, a common relative of the appellant and the deceased, appears to have originally owned this bit of land called the backyard. It is said to have been gifted by him either in shares or jointly to the appellant and the deceased. The appellant, however, appears to have successfully ousted Fakirappa front the enjoyment of that. Although Fakirappa did not pursue this matter, further troubles arose by reason of the appellant putting up a fence across this land obstructing the way to the deceased's own hittal adjoining Channappa's hittal.
9. The learned counsel on behalf of the appellant has attacked every one of these. So far as the production of the knife by the accused is concerned, he states that even the trial judge has declined to place any reliance on it. The motive suggested by the prosecution is, according to the learned counsel, too weak to inspire a desire on the part of the appellant to kill Fakirappa and, having regard to the fact that the appellant actually obtained complete possession of Channappa's hittal, one should expect Fakirappa and his people to harm the appellant and implicate him in this crime rather than the appellant to go out of his way to harm Fakirappa.
10. The attack against the oral evidence of the eye-witnesses is two-fold: In the first place, it is suggested that the incident of stabbing did not take place at or about 5 p.m., as stated in the charge but that there are indications in the evidence to show that the assault must have taken some two hours or more after sunset. If this argument is accepted, it would eliminate the presence at the scene of occurrence of almost all the eyewitnesses except perhaps the relatives.
Even as regards the relatives, the suggestion is that at that period of night they were either inside the house or at any rate would not have been able to see actually the attack on Fakirappa and that therefore their positive evidence to the effect that it was the appellant Basappa that stabbed Fakirappa is a deliberate lie invented with a view to falsely foist a case against him, actuated by the bitterness due to the disputes about the hittal mentioned above. The alternative suggestion is that these witnesses are suppressing certain material circumstances which, if brought before the court, would tend to show either that the appellant was not guilty at all of any offence or that the offence, if any, committed by the appellant would be a lesser offence and not murder. In further support of this argument, reliance is placed upon the fact that certain admitted eye-witnesses have not been examined for the prosecution.
11. The argument or the theory that the incident of stabbing took place after sunset is, in our opinion, a mere speculation, It is sought to be supported from two principal circumstances. In the second report given by the police patil Ex. 20, it is found stated that Fakirappa died at about 11 p.m. The medical officer Pralhad Krishna Sira-hatti P. W. 13 hag stated in his post-mortem notes the opinion that the deceased might have taken his last meal about 2 or 3 hours before his death. Putting these two together, it is argued that the deceased took his last meal, not at about 4 p.m., as spoken to by P. Ws. 1 and 2, but sometime later in the night between 8 and 9 p.m., and the stabbing must have been subsequent to that. The police patil has explained in his evidence that the mention of 11 p.m., as the time of death is mistaken. He states:
'I mentioned the time of death of Fakirappa as 11 p.m., as by the time we returned from Arli-katti to Inamkop it was 11 p.m.'
Earlier in his deposition he has referred to his being present at the time Fakirappa wag removed to P. W. 3's van and spoken to his having died en route to Arlikatte. The opinion stated by the medical officer is at best an opinion. It cannot be taken as contradicting the positive evidence of the witnesses to the effect that Fakirappa ate his last meal at about 4 p.m. and was stabbed at 5 p.m.
12-15. (Their Lordships then examined the evidence and continued as follows:) It is significant that although all the witnesses have deposed to the accused leaving the place with the bloodstained knife in his hand, none of them has spoken to the accused having come to the place with an open knife in his hand. It seems to us that the circumstances and human probabilities are not in favour of an inference that the accused came to the place with any premeditation or that the accused alone took the offensive. This is further clear to our mind from the sudden exclamation which came out of the mouth of Giri-vappa P. W. 5 as soon as he saw the stabbing.
Obviously, nobody around expected that the wordy warfare between Fakirappa and the appellant would result in such dire consequences. The evidence discloses that immediately after stabbing, P. Ws. 1 and 2 caught hold of Fakirappa and took him home and Giriappa caught hold of the accused and took him to his (latter's) house. It should also be remembered that it was the accused's brother who, on receipt of information from Giriyappa proceeded to Hubli to fetch the ambulance van.
16. In this view, it would appear that the stabbing was an unexpected consequence of a quarrel which all on a sudden took a serious turn. We have no hesitation in holding that there was neither premeditation nor any deliberate intention to kill on the part of the appellant. The light was short and sharp. So much is, in our opinion, beyond doubt. The question is whether the learned counsel for the appellant is right in asking us to go further and hold that the evidence establishes all the circumstances necessary to bring the case within the fourth exception to Section 300.
For that purpose, in addition to the inference stated above, it is necessary for the accused to establish that he stabbed Fakirappa in the heat of passion without taking any undue advantage and without acting in a cruel or unusual manner. In addition to the omission of any positive evidence on the part of the defence, the one circumstance which makes it difficult to accept this argument is that Fakirappa was entirely unarmed; the appellant having used a knife to stab him in so vital a part of the body as abdomen, it cannot rightly be said ha has not taken an unfair advantage of an unarmed man. At any rate, in the absence of sufficient material, we would be embarking upon speculation if we are to assume the existence of circumstances not fully or clearly borne out by the evidence.
17. The learned counsel for the appellant, however, insists that such an inference is perfectly possible and all the more so because the prosecution has omitted to examine five other witnesses who were admittedly eye-witnesses to the occurrence. We have already mentioned the presence of the husband and daughter of P. W. 2, It also appears from the evidence of P. W. 5 Giriyappa that, besides the persons mentioned by us, there were present Yallappa Betdur, Irappa Pujar, and Hanumawa who have not been, examined. The resultant position is that two relatives of the deceased. Viz., Basappa and Gowrawa, husband and daughter of Ningawa P. W. 2 and three others Hanurnawa, Irappa and Yallappa Betdur who were eyewitnesses to the occurrence have been given up by the prosecution.
They did so by filing a pursis Ex. 11. In addition to stating that they are unnecessary, tho public prosecutor has pointed out that Irappa Pujar and Yallappa Betdur among them had turned hostile. The counsel for the defence made an endorsement on that pursis to the effect that the alleged hostility of the witnesses cannot be admitted and though the defence does not want them as their witnesses, it is only fair that the prosecution should examine them. The record made by the learned Sessions Judge in the Roznama indicates that the defence pleader did not want to cross-examine them.
This has led to the argument that the learned Judge has misunderstood the endorsement of the defence counsel, and though the prosecution had kept the witnesses present in court and made them available for the defence, it was a mistake on the part of the Judge not to have permitted or called upon the defence counsel to cross-examine them. Unfortunately, the manner in which the record has been made lends support to this argument. But, we do not think that the prosecution can be found fault with in this regard.
The Public Prosecutor has definitely recorded at the foot of the pursis that all the witnesses were kept present in Court and they were available to the defence if they are required by the defence. That being the position, we think that the proper meaning to be attached to the learned Judge's record is not that he has misinterpreted the endorsement of the defence counsel on the pursis but that what is found recorded is an oral answer of the defence counsel to a question by the Court whether be wanted to cross-examine the witnesses. On this score, therefore, no complaint is possible.
18. It is, however, strenuously argued that these are material witnesses and the omission to examine them must be taken to be unfair practice on the part of the prosecution which has led to serious prejudice to the accused. The learned counsel has cited and relied upon two rulings of the Supreme Court, viz., Habeeb Mohammad v. State of Hyderabad, AIR 1934 SC 51 and Narain v. State of Punjab, : 1959CriLJ537 . There can be no doubt about the correctness of the proposition that the prosecution is expected to examine all material witnesses.
There is equally no doubt the the prosecution cannot be held to be under a duty to examine every witness available or every witness which the defence thinks should have been examined. The result of the authorities has been clearly stated by their Lordships of the Supreme Court and it is unnecessary for us to discuss the matter in detail or do anything more than to give the following extract from : 1959CriLJ537 :
'It is an accepted rule PS stated lay the Judicial Committee in Stephen Seneviratne v. The King, AIR 1939 P. C. 289 that witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution.' It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness 'essential to the unfolding of the narrative on which the prosecution is based.' Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that] he would have been able to give evidence of the facts on which the prosecution relied. It is not, however, that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses'.
The only question therefore for our consideration is whether on the application of the tests laid down by the Supreme Court these witnesses can be said to be such witnesses as the prosecution is compelled to examine.
19. Now it is clear that out of the 5 witnesses not examined, two witnesses are relatives and are in a position not different from that occupied by P. Ws. 1 and 2, among stranger witnesses, Han-umawa is not said to be hostile. It is not possible therefore for the learned counsel to contend that they would have spoken to any material facts which the witnesses already examined have not spoken to. In that view, those witnesses would be ones whose examination would lead to duplication, of evidence which, according to the principles, laid down by the Supreme Court, the prosecution is not bound to do.
Regarding the other two witnesses Irappa Pujar and Yallappa Betdur, the only suggestion made by the learned counsel or Open to him to make is that if they had been examined, they would have deposed to facts in support of the defence. Such witnessed, according to the test land down by the Supreme Court, cannot be said to be material witnesses because they are not necessary, or essential to the unfolding of facts on which the prosecution is based and which the other witnesses already examined have spoken to.
We understand this statement of principle to mean that before a witness omitted to be examined can be said to be material, it must be possible for the court to consider and come to the conclusion that he would speak to some fact material to the development of the prosecution case which has not been spoken to by the witnesses already examined by the prosecution nO such suggestion can be made with reference to the witnesses omitted.
20. Nevertheless, the learned counsel states, that if only the witnesses had been put into the witness box, he would have been able to elicit from them further circumstances necessary to bring-the case within the fourth exception to Section 300. The contention appears very attractive. But we should not forget the provisions of Section 105 of the Evidence Act under which the initial burden of proving the existence of circumstances bringing the case within this special exception to Section 300 of the Indian Penal Code is upon the accused. This burden, he cannot discharge by complaining that the prosecution has not examined witnesses who, for the reasons already stated, are not material witnesses. This argument therefore has to be rejected.
21. In view of the fact that we have found nothing to disbelieve any one of the eye-witnesses on whose evidence the learned Judge bases his conclusion, it is not necessary for us to examine the contention put forth on behalf of the State that there is really nothing to compel the court to reject the evidence regarding the production of the knife by the accused or refuse to attach any value to that discovery.
22. We, therefore, think that the conviction of the accused for the offence of murder is justified. Although he cannot be said to have had any intention to cause death, he, in the circumstances, must be held to have the intention to cause injuries to the deceased. That injury, according to the medical officer, was sufficient in the ordinary course of nature to cause death. One of the ribs, viz., the 11th had been completely cut.
The knife had pierced so far as to enter the abdominal cavity and cut the upper wall of the stomach. We have therefore no hesitation in accepting the opinion of the medical officer to the effect that the injury was sufficient in the ordinary course of nature to cause death. If therefore the appellant did intend to cause this injury and the injury is of the nature mentioned above, the case clearly falls under clause 'thirdly' of Section 300 and the offence committed by the appellant is one punishable under Section 302.
23. The last argument which cannot be rejected is that although indications and inferences available from the evidence do not fully warrant the application of the fourth exception to Section 300, the circumstances such as have been clearly established are sufficient to reduce the sentence. We therefore, reject the references and decline to confirm the sentence. While confirming the conviction of the accused for the offence of murder, we alter the sentence into one of imprisonment for life.
24. Order accordingly.